Unlocking the Labyrinth of Section- 65b of the Indian Evidence Act
By Ashima Mishra
Indian Evidence Act plays a major role in the court proceedings. We all know that the court only believes in evidence and facts. Only the facts can’t be enough to prove a crime. That’s why evidence plays a major role in it.
Similarly, evidences are of different kinds like-
- Oral Evidence
- Documentary Evidence
- Electronic Evidence
- ORAL EVIDENCE- It is a kind of evidence which is confined to words spoken by mouth. Section 3 of the Evidence Act defines oral evidence as “All statements which the court permits or requires to be made before it, by witnesses in relation to matter of fact under enquiry, such statements are called oral evidence. These statements are put before the court of law orally.
- DOCUMENTARY EVIDENCE- A kind of evidence which is presented as a document before the court of law in the form of writing. It is mainly found in papers. It demonstrates the reality.
- ELECTRONIC EVIDENCE- It is a kind of electronic record which is delivered in the court of law. The proof, even in criminal issues, can likewise be, by method for electronic records. This would incorporate or comprise of video conferencing.
Chapter- V of the Indian Evidence Act has a part which deals with the concept of documentary evidence. It plays a vital role during the court trial as the primary source of evidence or proof.
Section- 62 and 63 of the act deals with the admissibility of primary and secondary evidence respectively, during the court proceedings. Every day, a new law or an existing law is challenged on various grounds. Some prove to be valid whereas some to be totally invalid. The dilemma made regarding the mode and the way of admissibility of electronic evidence during the course of trial had many judicial verdicts of the supreme court which has somewhat cleared the problem.
Section 65 B of the evidence act deals with the admissibility of electronic records. Subsection (1) of this section states that any information contained in an electronic record that is printed or stored by a computer will be deemed to be a document. An electronic record is considered to be admissible as evidence in any proceedings without any further proof, as provided in the conditions mentioned in section 65 B is fulfilled.
This particular section has created a lot of perplexities in dealing with certain cases regarding the admissibility of electronic records as a piece of evidence.
That’s why in the year 2000, due to certain amendments in the laws, the electronic record was included as a part of documentary evidence. But there was no alteration made in the definition of the document during that amendment.
ELECTRONIC RECORDS- PRIMARY OR SECONDARY EVIDENCE?
Electronic records are those evidence or proof in which any data or information are stored or transferred through a digital medium. It is also called electronic evidence and is also considered secondary evidence.
The Indian Evidence Act under section 65 B states the circumstances when a party may opt for secondary evidence i.e. electronic records.
Again this section is subjected to certain conditions such as –
- It should be produced by a computer which has been used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
- The information or data derived should be regularly fed into the computer in the ordinary course of activities;
- The computer was operating properly.
INTERPRETATION OF SECTION 65 B THROUGH JUDICIAL PRONOUNCEMENTS
When we look into the judicial pronouncements of the court of law regarding the interpretation of section 65 B, it is found to be very confusing and not at all clear. Along with the apex court of India, other courts have also tried their best to give it a shape and tried hard to make the provisions clear to the people through various landmark decisions.
In the case of State (NCT Delhi) Vs. Navjot Sandhu 8(2005) 11 SCC 600, In this case, the court made an observation that section 63 of the Indian Evidence Act means as well as includes among other things, “copies made from original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies.” Finally, the apex court held that the need for a certificate under section 65B is not always mandatory and irrespective of section 65B, there is also no restriction to adduce it as secondary evidence under any other provision of the act.
Similarly, in the case of Mukesh Vs. State of N.C.T. of Delhi, AIR 2017SC 2161 pp.2199, 2200, An allegation of committing the offense of rape was made. The assault was taken place in a moving bus on the deceased and injured informant. CCTV footage and photographs also revealed that the presence of injured informant and victims near a mall from where they boarded but CCTV footage near the Hotel, where victims were dumped showed moving in a white bus having green and yellow strips present in it.
The name ‘Yadav’ was written on the bus. The bus exactly matched the description of the offending bus given by the injured informant and victim. The computer cell expert’s forensic division H.O.D. testified that there was no tampering or any kind of editing found in the CCTV footage. The Court held that the CCTV footage was creditworthy and acceptable and there is no reason for justification to perceive the same having a doubt.
Section 65B was made by the legislature to provide the concept of electronic records to be recognized as evidence in the court of law.
Recently, the Court of law dealt with a case of section 65B of Evidence Act, in a three-judge bench, the certificate required under section 65B (4) is a condition precedent to the admissibility of evidence by way of electronic record as correctly held in the case of Anvar P.V. Vs. P.K. Basheer, (2014) 10 SCC 473 and not properly made clear in the case of Shafhi Mohammad Vs. State of Himachal Pradesh (2018) 2 SCC 801.
In the Anvar P. case, some salient features were laid down-
- Certificate under section- 65B (4) of the Evidence Act is a condition precedent to the admissibility of evidence through the electronic record.
- Oral evidence cannot satisfy section 65B (4)
- So long as the hearing in a trial is not over, the certificate can be directed to be produced.
- The certificate is not needed if the original document is already produced, which can be done by the owner of a computer in the witness box and also to prove that the computer is owned and / or operated by him;
- If the electronic record is on a network then the only way it can only be provided is as per Section- 65B
- Batuklal, The Law of Evidence, 23rd Edition, 2020
- Criminal Manual, Commercial Law Publisher’s (India) PVT. LTD